#### In re Will of E. J. FINCH.

(Filed 14 April, 1920.)

Appeal and Error — Remarks of Court — Wills—Undue Influence — Mental Capacity — Harmless Error.

Where upon the trial of a caveat to a will the issues of mental capacity of the testator and undue influence have been submitted to the jury, and of the latter, there has been neither evidence or controversy, and the jury held there was not undue influence, the remarks of the trial judge of the high character of the counsel who drew the will, though they may have been prejudicial to the caveators on the issue of undue influ* ence, are immaterial and not reversible error.

Issue of devisavit vel non as to tbe due execution of tbe will of E. J. Finch, deceased, tried before Bryson, J., and a jury, at November Term, 1919, of DavidsoN.

Tbe jury rendered tbe following verdict:

“1. Vas tbe paper-writing propounded dated 23 April, 1918, executed by tbe testatrix, E. J. Eincb, according to tbe formalities of law required to make a valid last will and testament? Answer: ‘Yes.’

“2. At tbe time of tbe signing and execution of said paper-writing did tbe said E. J. Eincb bave sufficient mental capacity to make and execute a valid last will and testament? Answer: ‘Yes.’

“3. Was tbe execution of tbe said-paper-writing propounded in this case procured by undue influence, as alleged? Answer: ‘No.’

“4. Is tbe paper-writing bearing date 23 April, 1918, propounded 2 July, 1918, and eacb and every part thereof tbe last will and testament of E. J. Fincb? Answer: ‘Yes.’ ”

Judgment on tbe verdict for tbe propounders, and tbe caveator excepted and appealed.

A. E. Holton, Walser & Walser, and J. R. McCrary for appellants.

Brooks, Sapp & Kelly, Phillips & Bower, and Roper & Roper for propounders, appellees.

Per Curiam.

Under a full and comprehensive charge tbe jury bave rendered their verdict in favor of tbe propounders, finding on separate issues that tbe testatrix bad tbe requisite mental capacity, and that there bad been no undue influence exerted, and on careful examination we are of opinion that tbe exceptions of appellant present no substantial objection to tbe validity of tbe trial and judgment.

Tbe remarks of bis Honor in approval of tbe high character of counsel who drew tbe will, however just in themselves, might bave become tbe source of prejudicial error on a debateable question, but in -tbe way *697they are presented in the record these comments could only have had significance on the issue as to undue influence, and there are no facts in evidence which show or tend to show the exertion or effect of such influence by the propounders or any other.

This exception, therefore, is immaterial, and must be disallowed.

A perusal of the record will show that the verdict of the jury is fully justified on all the issues. That no reversible error has been made to appear, and the judgment upholding the will should be affirmed.

No error.